Written for YourProperty
The Property Poser panel has had a question from a reader faced with the “for richer or poorer” aspect of her wedding vows, as she grapples with the issue of property ownership and debt under her particular marital regime.
She explains that she and her husband acquired a property jointly before they got married but after their antenuptial contract was drafted. They married out of community of property with the inclusion of the accrual system.
Unfortunately, it appears that her husband is involved in a legal wrangle with certain of his creditors. The result is that the jointly owned property is under threat to be sold on auction.
The reader would like to know whether this is possible, since she is a co-owner and it is only her husband who is liable for the outstanding debt.
The husband and wife who are married out of community of property (with or without the accrual system) each has his or her own estate, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.
“The accrual system merely assigns a sharing of the growth in the respective estates should the marriage be dissolved in the event of death or divorce.”
Irrespective of how a couple is married, Vermaak says other legislation or common law rules may impose a different ownership with regard to certain assets.
“So certain assets may be owned exclusively by one spouse, regardless of a marriage in community of property. An example would be if a property were bequeathed to a person with the stipulation that it should not form part of any joint estate that may exist between the heir and his or her spouse.”
Likewise, certain assets may be owned jointly by virtue of the specific way in which the asset was acquired, says Vermaak.
“The case under discussion is an example of this. When the couple acquired the property in their joint names, they became joint owners in undivided half-shares of the property.”
Vermaak says this can be likened to unrelated parties owning a property together for commercial purposes.
“As our reader correctly points out, she cannot be held liable for a debt owed by her husband.”
Even so, it may very well be that his creditors obtained judgment against him with regard to the outstanding debt, says Rian du Toit from DTS Attorneys in PE.
“Once judgment is obtained, the creditor may attach and sell goods belonging to the debtor in order to satisfy the judgment.”
This is usually first attempted in terms of movable goods, says Du Toit. “However, should there be none, or if they are insufficient to satisfy the debt, the creditor may take action against the immovable property belonging to the debtor.”
Du Toit says the creditor’s claim will nevertheless be limited to the debtor’s interest in the property. “In other words, should the property be sold, he or she cannot claim more than the debtor’s half-portion ownership.”
According to Du Toit, a creditor can only sell the debtor’s undivided half-share in the property should the creditor have obtained a court order authorising such a sale.
The reader may interpose and offer to purchase her husband’s share in the property, says Du Toit. “Should the creditor consent, this would provide her spouse with the necessary cash to satisfy the outstanding debt.”
It must be noted, says Du Toit, that if one of the spouses has been sequestrated, the assets of the solvent spouse may be affected even if they are married out of community of property, by virtue of the provisions of the Insolvency Act.
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